It
took nearly seven years of First Amendment litigation, but members of the
Kentucky State University (KSU) class of 1994 finally received their yearbooks
in the spring of 2001.The
distribution of the yearbook, titled The
Thorobred, marks the end of a dispute that threatened to sharply limit the
free speech rights of students at public universities.Kincaid v. Gibson, 236
F.3d 342 (6th Cir. 2001) (en banc).

Background

The dispute began when university administrators first saw the yearbook
after it came back from the printers in November 1994.It was not the kind of yearbook they were expecting.Its cover was made of purple foil (school colors are green and gold),
its theme was the ambiguous “Destination Unknown,” and it included
photographs of people -- among them Attorney General Janet Reno and Supreme
Court Justice Ruth Bader Ginsburg -- who seemed, to administrators, irrelevant
to the yearbook’s focus.

University Vice President for Student Affairs Betty Gibson and other
officials were so dissatisfied with the yearbook that they decided to withhold
it from distribution.Students Charles Kincaid, a prospective reader of the
yearbook, and Capri Coffer, one of its editors, challenged the university
decision in a First Amendment lawsuit filed in federal district court.

In November 1997, Judge Joseph Hood rejected the students’ suit,
ruling that even though KSU is a state university, its yearbook is not a
public forum.Judge Hood also
ruled that university administrators exercised “reasonable control” over
the yearbook.Kincaid v. Gibson, CIV 95-98 (E.D. Ky. Nov. 14, 1997).

But most troublesome to student press advocates was that Judge Hood’s
ruling marked the first time that the 1988 U.S. Supreme Court decision Hazelwood
School District v. Kuhlmeier, 484 U.S. 260 (1988), had been applied to a
college publication.The Hazelwood decision had been a major defeat for high school media,
allowing school officials to censor student expression if they could show that
their actions were “reasonably related to legitimate pedagogical
concerns.”

The Hazelwood decision had
led to a sharp increase in high school censorship.But it had never been applied to expression at the university level,
where the increased maturity of students and the diversity of voices has for
decades led judges to favor wide-open expression with little regulation.A footnote in Hazelwood
specifically excluded colleges and universities from its scope.

But Judge Hood invoked Hazelwood
anyway, as a justification for finding that the yearbook was not a public
forum.“The yearbook was not intended to
be a journal of expression and communication in a public forum sense, but
instead was intended to be a journal of the ‘goings on’ in a particular
year at KSU,” Judge Hood wrote.

Student
Press Advocates Mobilize

Student press advocates sounded the alarm about Judge Hood’s ruling,
asserting that applying Hazelwood’s censorship-friendly standard to college media would
cripple an important communication tool for students.

“The college media could be fighting for their life with this
case,” said Mark Goodman, executive director of the Student Press Law Center
(SPLC) in Arlington, Va.“As we’ve seen at high schools across the nation, when
government officials can censor an article they don’t like simply by saying
that it's ‘poorly written’ -- you've made a joke of the First Amendment.No credible student journalism program can operate under such
constraints.The future of
journalism education is very much at stake here.”

A broad coalition of First Amendment and media organizations filed a
friend-of-the-court brief when Judge Hood’s decision was appealed to the
U.S. Court of Appeals for the Sixth Circuit.

“The censorship of curricula and the impingement of academic freedom
that Hazelwood arguably could permit
would cause irreversible damage to the venerable place occupied by academic
institutions as the marketplace of ideas,” the coalition argued in a brief
written by attorneys Richard Goehler, Jill Meyer Vollman, and Ana Maria Merico-Stephens
of the Cincinnati-based law firm of Frost & Jacobs.

“It is no doubt reasonable that KSU should seek to maintain its image
to potential students, alumni, and the general public,” wrote Judge Alan
Norris.“In light of the
undisputedly poor quality of the yearbook, it is also reasonable that KSU
might cut its losses by refusing to distribute a university publication that
might tarnish, rather than enhance, that image.”Judge Norris, like Judge Hood, invoked Hazelwood
to demonstrate that the yearbook was not a public forum and therefore did not
require the university to meet a high standard before being allowed to censor
it.

In dissent, Judge R. Guy Cole, Jr. took the majority to task for
invoking Hazelwood in the context of
a university yearbook.He said
the yearbook is a limited public form where heightened First Amendment
scrutiny is appropriate. “I believe that the university’s proffered
reasons for withholding distribution of the yearbook for the period of 1992-94
-- inappropriate theme or title, poor quality -- are content-based
restrictions that do not serve any compelling governmental interest,” wrote
Judge Cole.

Student press advocates were stunned by the majority opinion, bracing
for a wave of censorship, at least at the state universities in Kentucky,
Michigan, Ohio, and Tennessee, which comprise the Sixth Circuit.

Full
Court Reverses

But a few months later came a sign that not all was lost.The appeals court announced it would rehear the case en banc, or as a
full court.After hearing
arguments in the case in May 2000, the court reversed the panel decision on
Jan. 5, 2001 and declared that the yearbook was indeed a limited public forum.This time, Judge Cole wrote for a 10-to-3 majority.

“There is little if any difference between hiding from public view
the words and pictures students use to portray their college experience, and
forcing students to publish a state-sponsored script,” Judge Cole wrote.“In either case, the government alters student expression by
obliterating it.We will not
sanction a reading of the First Amendment that permits government officials to
censor expression in a limited public forum in order to coerce speech that
pleases the government.”Kincaid,
236 F.3d at 355.Judge Cole also
rejected the earlier application of Hazelwood
to the university setting.

The decision was a strong endorsement of First Amendment rights for
college students.“The
university environment is the quintessential ‘marketplace of ideas,’ which
merits full, or indeed heightened, First Amendment protection,” Judge Cole
wrote.“Confiscation ranks with
forced government speech as amongst the purest forms of content alteration,”
Judge Cole also said.Id.

The Sixth Circuit found the university’s confiscation of the yearbook
for six years to be “arbitrary and unreasonable,” and “not a reasonable
time, place, or manner regulation of expressive activity.”Id. at 354.

The ruling was applauded as a landmark for college free speech rights.“It took some time, but this court finally got this case right,”
said Mr. Goodman of the SPLC.“As
this court’s decision indicates, the very idea that books have been locked
away by government officials on a public university campus for the past six
years so that students cannot read them is more reminiscent of a third-world
dictatorship than our American democracy.”

The university indicated at first that it might appeal to the Supreme
Court but did not, instead negotiating with the students to fashion a remedy
for the violation of their First Amendment rights.In March 2001, the university announced it would distribute the
yearbooks to all entitled graduates who could be found, and it agreed to pay
the students’ attorney fees.